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29th February 2016

The High Court Implies Terms Into Planning Conditions

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In the recent case of R (on the application of Skelmersdale Limited Partnership) v West Lancashire Borough Council v St Mowden Developments (Skelmersdale) Limited the High Court refused an application for judicial review for a planning condition which required that retailers could only occupy space in a new shopping development if they also retained their retail space in an existing shopping centre in Skelmersdale, Lancashire.

This was intended to protect the existing shopping centre from loss of trade.

The planning condition required that the larger retailers with floor spaces of at least 250 square metres had to submit a scheme which committed their presence in the existing shopping centre for at least five years, and then comply with that scheme. The owner of the existing shopping centre applied for Judicial Review of this condition on the ground that it would not be enforceable.

The Court found the planning condition had a clear purpose; to safeguard the existing retail development by placing constraints on the retailers who were currently operating there. Mr Justice Hay reasoned that the word “commit” meant a legally enforceable promise. It would be possible through a section 106 agreement for the Local Planning Authority to enforce the retailer’s compliance with this condition. Because there was this mechanism through which the Local Planning Authority could ensure the compliance, the condition was not found to be vague or unenforceable.

In December last year the Supreme Court considered whether a condition attached to a consent for an off-shore wind farm was vague and unenforceable, and our note on this case can be found [here]. The Supreme Court opined that it was possible to imply terms into conditions which would make them enforceable. This more recent decision confirms that the Courts are adopting an approach of finding a way to interpret conditions so that they are enforceable.

For further information, our Planning Team will be happy to help, or click here to email Deborah Sharples or contact her on 01223 532757.